Badgley v. Votrain

Mr. Justice McAllister delivered the opinion of the Court: This case is clearly distinguishable from that of Otis v. Beckwith, 49 Ill. 121, relied on by counsel for defendant in error. In that ease the subject matter of the settlement was a policy of insurance upon the life of the settlor, which was not assignable at law. The instrument of assignment contained an express declaration of trust in favor of the donor’s three sons. The donor, upon executing it, gave explicit notice of the fact of the assignment and its purpose to both the assignee and the insurance company. Whereupon the former made a formal acceptance of the trust, and the latter noted the assignment in their books, in accordance with their regulations in such cases. The donor had done everything in his power essential to the completion of the transaction. The delivery of the policy to the assignee was not essential. So further conveyance from the donor was requisite. The trust was perfectly created, and nothing was required of the court but to give it effect as an executed trust: But the case in hand differs in essential particulars. Here, there is no declaration of trust, and we are satisfied, from a careful examination of the instrument of September 6, 1871, that the donor had no intention of thereby creating the relation of trustee and cestui que trust between himself and defendant in error in respect to any fund or choses in action. That instrument is wholly executory in its effect, and, aside from the promise by the donor to pay defendant $200 annually, during the donor’s life, it is wholly testamentary in its nature. So far as the provision is concerned, requiring $12,000 to be paid over to defendant out of the donor’s estate after his death, and then, that defendant should take one-third of the residue, the instrument purports to be, and is, a mere testamentary disposition of the donor’s estate, not executed in conformity with the Statute of Wills, and we would, therefore, be no more justified in inferring an intention on the donor’s part to constitute himself trustee, during his life, of the property out of which the $12,000 were to be paid to defendant, than if, instead of this instrument, he had made a will containing the same provision. These propositions we regard as clear and incontrovertible. If, then, there is the absence of an express declaration of trust and of an intention to create one on the part of the donor in favor of defendant, what is the precise nature of the relief sought by defendant, in bringing his bill in the court below? It was to obtain the assistance of a court of equity to constitute him cestui que trust upon this voluntary instrument. In Ellison v. Ellison, 6 Ves. 656, Lord Eldon said: “I take the distinction to be that, if you want the assistance of the court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust, as, upon a covenant to transfer stock, etc., if it rests in covenant, and is purely voluntary, this court will not execute that voluntary covenant. But if the party has completely transferred stock, etc., though it is voluntary, yet, the legal conveyance being completely made, the equitable interest will be enforced by this court.” In the reliable elementary works, the result of the decisions is stated to be, that, if the trust is perfectly created, so that the donor or settlor has nothing more to do, and the person seeking to enforce it has need of no further conveyances from the settlor, and nothing is required of the court but to give effect to the trust as an executed trust, it will be carried into effect, although it was without consideration, and the possession of the property was not changed. But if, on the other hand, the transaction is incomplete, and its final completion is asked in equity, the court will not interpose to perfect the settlor’s liability without first inquiring into the origin of the claim, and the nature of the consideration given. Perry on Trusts, see. 98; Adams’ Eq. 6th Am. Ed. 194-5; Lewin on Trusts, 2d Am. Ed. 134, 135; 2 Story’s Eq. Jur. sec. 793 a. In McFadden v. Jenkyns, 1 Hare, 458, Sir J. Wigbam, V. C., after citing all of the principal English decisions, made these observations: “ There may be difficulty in reconciling with each other all the cases which have been cited. Perhaps they are to be reconciled and explained upon the principle that a declaration of trust purports to be, and is, in form and substance, a complete transaction, and the court need not look beyond the declaration of trust itself, or inquire into its origin, that it may be in a position to uphold and enforce it. Whereas an agreement or attempt to assign, is, in form and nature, incomplete, and the origin of the transaction must be inquired into by the court; and where there is no consideration, the court, upon its general principles, can not complete what it finds imperfect.” These views of that great judge seem to have been cautiously expressed, but to us they seem to be a complete exposition of the principle which ought to govern in a ease like this. So, in Beech v. Keefe, 18 Beav. 285, Sir John Romilly, Master of the Rolls, quoting from his judgment in Bridge v. Bridge, 16 Beav. 315, says: “If a person, possessed of stock, execute a declaration of trust of that stock in favor of a volunteer, he would, I apprehend, clearly constitute himself a trustee for the volunteer, and equity would execute the trust and compel a transfer of the stock to the cestui que trust. But if the same person executed an assignment of the stock in favor of the volunteer, and no transfer of the stock took place, this, I apprehend, would as clearly be considered to be no more than an imperfect gift, in which the donor had not done all that was in his power to do, and the donee would get no assistance from a court of equity to compel a transfer of the stock.” Now, here, as we have seen, there was no declaration of trust, and the very nature of the instrument precludes the idea of an intention on the part of the donor to create the relation of trustee and cestui que trust between him and defendant in error. The substance of the transaction is, that the donor executed an assignment of $12,000 out of his estate, in favor of a volunteer, and provided for its payment, after his death, out of promissory notes payable to himself, some of which were secured by mortgages upon real estate. These notes were capable of legal transfer, but only in the mode prescribed by our statute, viz: by indorsement on the back by the payee, and delivery. It could not be done by a separate instrument. Ryan v. May, 14 Ill. 49; Fortier v. Darst, 31 Ill. 212. On five of the notes there had been an assignment written by the payee some six months prior to the instrument of September 6, 1871, but no delivery. The circumstances of that transaction are not disclosed. It was incomplete. The title did not vest in the assignee. On the other notes there was never any indorsement, and there can be no question that the legal interest in all these notes remained in the donor down to and at the time of his death. This bill is brought by the volunteer, to have the court complete what the donor left incomplete, by compelling the transfer to him of the legal interest in these notes. There being no consideration, the court, upon its general principles, can not complete what it finds thus incomplete. As was said by this court in Clarke v. Lott, 11 Ill. 115: “ The principle is well settled, that a court of equity will not lend its aid to establish a trust at the instance of mere volunteers. If the transaction, on which the voluntary trust is attempted to be established, is still executory or incomplete, the court will decline all interference in the matter.” There was something said in argument by counsel for defendant in error, about there being a meritorious consideration. That might, perhaps, arise in favor of a wife or child, where there is a moral obligation and duty of support on the part of the donor. But here the defendant is a grandchild, and he asks the aid of the court in completing this transaction as against the other grandchildren of the donor, whose claim is equally meritorious. There was an attempt made by plaintiff below to show, by the declarations of the donor, that the other children were provided for, but whatever force there was in that evidence, it was rebutted by the evidence of defendants below. The decree of the court below will be reversed and the cause remanded. Deoree revei’sed.